California courts have long recognized that the trial court has the inherent power to grant a post-judgment motion to vacate a guilty plea.[290] 

 

The grounds for coram nobis relief are very limited.  The writ will only issue where there is newly discovered evidence of a fact that could not have been discovered by the petitioner earlier, which if known to the court at the time, would have prevented the entry of judgment.[291]  The writ is strictly limited to correcting errors of fact; it does not extend to correct errors of law.[292]  Claims of federal constitutional error thus do not fall within the scope of coram nobis.[293]  This includes claims of ineffective assistance of counsel.[294]  With respect to guilty pleas, it is well established that a petitioner may not use coram nobis to assert that he was not properly advised as to the consequences of entering the guilty plea or the constitutional rights lost as a result.[295] 

 

            It has often been said that a petition for writ of coram nobis is the modern day equivalent to a motion to vacate and that the terms may be used interchangeably.[296]  That suggestion, however, is misleading.  On the one hand, the two vehicles are equivalents in one sense.  They are legal equivalents because both serve the same function of providing the mechanism by which a judgment may be erased.  They differ, however, in the grounds upon which they rely.  As discussed above, coram nobis lies only to vacate a judgment based on an extrinsic mistake of fact.  A motion to vacate, however, can extend to negate a judgment on many other grounds, as discussed below.

 

            One Justice of the California Supreme Court explained that the two forms of relief are not in fact identical:

 

[A]lthough coram nobis is similar to a motion to vacate judgment, it does not follow that the writ carries all of the procedural incidents of such a motion.  Certainly if the remedies of a motion to vacate judgment and coram nobis were identical, a court would not have the power to issue a writ of coram nobis for “where remedies exist by statute which did not exist at common law, the office and function of the writ are abridged thereby, and in such cases, the writ is unavailable.  The similarity is merely that the relief that may be administered by the one form of procedure is identical with that in the other.”[297]

 

A motion to vacate made be made on grounds not traditionally within the scope of coram nobis.  For example, a motion to vacate, not coram nobis, is the proper means to challenge the absence of the trial court’s jurisdiction.[298]  A nonstatutory motion to vacate is the proper procedural vehicle to argue that the conviction is invalid because the court lacked subject matter jurisdiction, or that the statute of conviction does not define a criminal offense.[299]  The Thomas Court stated:

 

The remedy here sought is available, however, because the basis of defendant's attack on the judgment is that it is void.  Fundamental jurisdictional defects . . . do not become irremediable when a judgment of conviction becomes final . . . . [W]e have no doubt that a motion to vacate was a proper manner of presenting the jurisdictional problem in this case . . . even though the facts which constituted the claimed jurisdictional defect were known to all concerned, including the trial court, when sentence was pronounced.  Id. at 528-29 (emphasis added).  

 

Allegations of lack of jurisdiction do not state a basis for coram nobis relief for several reasons.  First, the alleged defect is a legal, not factual, matter, which coram nobis does not lie to correct.[300]  Moreover, the absence of jurisdiction can be raised at any time.  It is not necessary that the defect be newly discovered or extrinsic to the case, as is required for coram nobis relief.  For these reasons, California courts have expressly held that challenges to the trial court's jurisdiction do not state grounds for coram nobis relief.[301]

 

A motion to vacate, rather than a petition for coram nobis, is also the proper means to challenge the trial court’s failure to advise a defendant of the possible immigration consequences of their plea pursuant to Penal Code § 1016.5.  As explained by the Court in People v. Gontiz,[302] reversed on other grounds,[303] prior to the enactment of Penal Code § 1016.5, a defendant who pled guilty without being advised as to the possible immigration consequences of their conviction, had no procedural mechanism to vacate their plea because a petition for coram nobis would not lie because the new fact of deportation would not have necessarily prevented the entry of judgment.[304]  To fill the void left by the absence of coram nobis relief, the Legislature enacted Penal Code § 1016.5 to provide a statutory mechanism to vacate a plea.[305]  Thus, the statute, not the common law writ, provides the basis upon which a petitioner may seek to vacate his or her plea.[306]

 

            Because the grounds upon which they rely may differ, a motion to vacate exists as a separate procedural device from coram nobis.  Upon the filing of a post-judgment motion to vacate a guilty plea, the proper inquiry is not whether petitioner has stated grounds for relief in coram nobis, but whether petitioner has raised any grounds that would allow the court to vacate his or her guilty plea. 

[290] See People v. Caruso (1959) 174 Cal. App.2d 624, 633; People v. Campos (1935) 3 Cal.2d 15; People v. Smink (1930) 105 Cal. App. 784, 790.

[291] See People v. Reid (1924) 195 Cal. 249; Prickett, The Writ of Error Coram Nobis in California, 30 Santa Clara L. Rev. 1, 15 (1990).

[292] People v. Reid, supra.

[293] See, e.g., People v. Adamson (1949) 34 Cal.2d 320, 327.

[294] Ibid.; People v. Soriano (1987) 194 Cal. Ap. 3d 1470, 1477.

[295] See People v. Banks (1959) 53 Cal. 2d 370, 378.

[296] See, e.g., People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618.

[297] In re Paiva (1948) 31 Cal.2d 503, 511 (dissenting opinion)(emphasis added).

[298] See People v. Thomas, (1959) 52 Cal. 2d 521.

[299] People v. Vasilyn (2009) 174 Cal.App.4th 43, 94 Cal.Rptr.3d 260 (vacating the plea of nolo contendere where it found that the offense of conviction defined a sentence enhancement rather than a separately punishable criminal offense).

[300] See People v. Vasilyn (2009) 174 Cal.App.4th 43, 94 Cal.Rptr.3d 260 (noting that the lack of subject matter alleged by the defendant was not cognizable in a coram nobis proceeding but was cognizable in a nonstatutory motion to vacate proceeding).

[301] See People v. Wheeler (1970) 5 Cal. App. 3d 534, 538 (claim that federal court had exclusive jurisdiction to try the offense not cognizable in coram nobis); People v. Conley (1953) 115 Cal. App. 2d 749, 750 (jurisdictional issue not properly raised in coram nobis).

[302] People v. Gontiz (1997) 58 Cal.App.4th 1309, 1313-14.

[303] People v. Superior Court (Zamudio)(2000) 23 Cal. 4th 183.

[304] Ibid., citing People v. Trantow (1986) 178 Cal.App.3d 842, 845.

[305] Ibid.

[306] People v. Superior Court (Zamudio), supra; see, e.g., People v. Ramirez (1999) 71 Cal.App.4th 519; People v. Suon, 76 Cal.App.4th 1 (1999); see also People v. Gallardo (2000) 77 C.A.4th 971 n.5 (noting that Penal Code § 1016.5 motions to vacate do not meet the standards for coram nobis); People v. Castaneda, supra, 37 Cal.App.4th at 1618-22 (finding that a motion to vacate under Penal Code § 1016.5 requires a showing of diligence and prejudice by analogizing to requirements of coram nobis).

Ninth Circuit

CAL POST CON " GROUNDS " CONVICTION OF SENTENCE ENHANCEMENT WITHOUT OFFENSE IS VOID AND CAN BE VACATED AT ANY TIME
People v. Vasilyan (May 28, 2009) 174 Cal.App.4th 443, 94 Cal.Rptr.3d 260 (a nonstatutory motion brought in 2007 to vacate the 1994 judgment of conviction of violating Penal Code 422.7 is the proper procedural vehicle to raise the defect of a lack of subject matter jurisdiction on the ground that statute does not define a criminal offense, but is simply a sentence enhancement statute changing a conviction under another listed statute from a misdemeanor to a felony, so the trial court had no jurisdiction to convict the defendant of a non-existent offense, vacating the judgment of conviction and plea of nolo contendere, and remanding with directions to amend or dismiss the information), distinguishing People v. Kim (2009) 45 Cal.4th 1078.